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2013 DIGILAW 1893 (BOM)

Ashok Ramesh Bhalerao v. State of Maharashtra

2013-09-17

A.R.JOSHI, V.K.TAHILRAMANI

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JUDGMENT V.K. TAHILRAMANI, J. 1. The appellant original accused has preferred this appeal against the judgment and order dated 25.07.2008 passed by the Principal Sessions Judge, Raigad-Alibag in Sessions Case No. 174 of 2007. By the said judgment and order, the learned Sessions Judge convicted and sentenced the appellant as follows:- Convicted U/s. Sentenced to 302 Life imprisonment and fine of Rs. 10,000- in default R.I. for Four Years. 511 Rigorous imprisonment for Five years and fine of Rs. 10,000/- in default R.I. for Two Years. The learned Sessions Judge directed that both the substantive sentences shall run concurrently. 2. The prosecution case briefly stated, is as under: (a) Deceased Surekha was residing under a tree near Khopoli Railway Station along with her parents and two brothers. Her age was about 8 years at the time of the incident. On 11.05.2007, when Surekha had gone along with her mother to the river to have a bath, at that time, her mother scolded her, hence, Surekha did not come to the place where her family was residing. From about 02.00 p.m. she was playing behind a Masjid near the railway station. At night, her family started searching for her but she could not be found. (b) On 12.05.2007 in the morning at about 08.30 a.m. one Jayabai, who was residing close to the place where the family of Surekha was residing, told them that dead body of Surekha is lying near a gutter near Khopoli Railway Station. At the spot, the girl was found wearing a skirt and a top, however, her nicker was found lying nearby. A cloth ball was found stuffed in her mouth. Injuries were seen on the dead body of Surekha. Then, Raju father of Surekha lodged the FIR. Thereafter, investigation commenced. The dead body of Surekha was sent for postmortem. PW 3 Dr. Kalambuskar conducted the postmortem on the dead body of Surekha. Dr. Kalambuskar noticed 16 injuries on the dead body of Surekha. They were multiple abrasions on the upper thigh, gluteal region both sides, perineal region right and left side, left eye, sternum region and on L1, L2 and T7 to T9 region. Dr. Kalambuskar also noticed contusions on gluteal region, lumber region and on left cheek. On opening the skull, hemorrhage was found present on the brain and the blood was found congested. This injury was mentioned in Col. Dr. Kalambuskar also noticed contusions on gluteal region, lumber region and on left cheek. On opening the skull, hemorrhage was found present on the brain and the blood was found congested. This injury was mentioned in Col. No. 19 (xiii) of the PM Notes. On opening the lungs, both the lungs were congested. On opening, blood tinged froth was noticed therein. In the heart, blood was found congested but the heart was empty and liver was found congested. Vaginal swab and nail clippings were taking by Dr. Kalambuskar. According to Dr. Kalambuskar, the cause of death was due to asphyxia due to suffocation. (c) The appellant was arrested on 12.05.2007. At the time of arrest, pant (Article 3) on his person was found bearing some stains. The said pant as well as shirt of the appellant were seized under Panchanama (Exh. 31). The clothes on the body of the deceased girl along with her nicker were sent for DNA analysis along with the clothes of the appellant. After completion of investigation, the charge sheet came to be filed. In due course, the case was committed to the Court of Sessions. 3. Charge came to be framed against the appellant accused under Sections 376(2)(f) and 302 of IPC. The appellant pleaded not guilty to the said charge and claimed to be tried. His defence is that of total denial and false application. After going through the evidence adduced in this case, the learned Sessions Judge convicted and sentenced the appellant as stated in paragraph 1 above, hence, this Appeal. 4. We have heard the learned Advocate for the appellant and the learned APP for the State. After giving our anxious consideration to the facts and circumstances of the case, arguments advanced by the learned Advocates for the parties, the judgment delivered by the learned Sessions Judge and the evidence on record, for the reasons stated below, we are of the opinion that the appellant committed an attempt to rape Surekha and thereafter caused her death by putting a cloth ball in her mouth which led to her death due to asphyxia due to suffocation. 5. There is no eye witness in the present case and the case is entirely dependent on circumstantial evidence. The circumstances against the appellant are as under: (i) Last seen together. (ii) Semen stains were found on skirt of the deceased girl. 5. There is no eye witness in the present case and the case is entirely dependent on circumstantial evidence. The circumstances against the appellant are as under: (i) Last seen together. (ii) Semen stains were found on skirt of the deceased girl. (iii) DNA report shows that semen stains found on the skirt of the deceased girl tallied with DNA sample of the appellant. (iv) Judicial confession. 6. PW 1 Avinash is the witness who has deposed about the circumstance of last seen. This witness was running vadapav business on a handcart. This witness knew the appellant, as on many occasions the appellant had purchased vadapav from his handcart. PW 1 Avinash has stated that on 11.05.2007 at about 08.30 p.m. to 08.45 p.m. the appellant came to his vadapav cart with a girl aged about 8-9 years. The girl was wearing a top and a skirt and the appellant was wearing chocolate colour full pant and shirt. This witness has identified the appellant as the same person who had come to his handcart at about 08.30 p.m. to 08.45 p.m. with a girl aged about 8-9 years. He has identified the skirt worn by the deceased girl as the same skirt which was worn by the girl during her visit to his stall along with the appellant. This skirt is marked Article 2. 7. When the dead body of Surekha was found, there were a top and a skirt on her dead body. This very skirt has been identified by PW 1 Avinash as being the skirt which was worn by the girl aged 8-9 years who had come to his handcart with the appellant. This skirt was sent for DNA analysis. The evidence of PW 10 Dr. Chavan shows that the blood of the appellant was collected for DNA analysis. This blood sample along with the clothes of the appellant and the clothes of the deceased were sent for DNA analysis. DNA analysis shows that the semen stains found on the skirt (Article 2) of the girl tallied with the sample of blood taken from the appellant. The stain on the pant of the appellant worn by him at the time of arrest, was found stained with semen which semen stain tallied with the sample taken from him. DNA analysis shows that the semen stains found on the skirt (Article 2) of the girl tallied with the sample of blood taken from the appellant. The stain on the pant of the appellant worn by him at the time of arrest, was found stained with semen which semen stain tallied with the sample taken from him. The fact that semen was found on the skirt of the girl and the pant of the appellant and the 16 injuries which were found on the body of the victim girl clearly show that it was the appellant who had attempted to rape the victim girl. The finding of abrasions on the perinea] and abrasions and contusions on the gluteal region show that the appellant made the victim girl lie down on the rough ground and he has lied down on her and tried to have sexual intercourse with her. In order that the girl should not shout for help and attract the attention of people, the appellant put a cloth ball in the mouth of the girl which led to her death due to asphyxia. 8. The last circumstance relied upon by the prosecution is that of judicial confession made by the appellant to PW 11 Oza who was the JMFC and Joint Civil Judge (Junior Division) at Khalapur. This witness has stated that he received a letter from Khopoli Police Station to record the statement of the appellant. He was informed by the said letter that the appellant had volunteered to give his confessional statement and he was asked to record the confessional statement of the accused. He directed that the appellant be produced before him on 01.06.2007, however, due to law and order problem, it was not possible to produce the appellant before PW 11 Oza on 01.06.2007, hence, he extended the date and the appellant was produced before him on 06.06.2007. PW 11 Oza identified the appellant as the same accused who made a confessional statement before him. PW 11 Oza has further stated that initially he asked the name and the residential address of the accused. Thereafter, he put total 11 questions to the accused. The nature of these questions was whether the accused knows Marathi language, to which he answered in the Marathi. PW II Oza further questioned the accused whether he is voluntarily giving the confession to which he answered in the affirmative. Thereafter, he put total 11 questions to the accused. The nature of these questions was whether the accused knows Marathi language, to which he answered in the Marathi. PW II Oza further questioned the accused whether he is voluntarily giving the confession to which he answered in the affirmative. Then PW 11 Oza questioned him whether anybody has pressurized him to give the confessional statement to which he answered in the negative. Then PW 11 Oza questioned him whether he has any complaint against the Police who have arrested him, to which he answered in the negative. Then PW 11 Oza questioned him whether he has any complaint against any other Police Officer, to which he answered in the negative. Then PW 11 Oza questioned him whether anybody has given assurance to him that in case he gave confessional statement in the Court, then he will be acquitted from this case to which he answered in the negative. Then PW 11 Oza questioned the accused whether any Police Officer or anybody else had assured him that he will be favoured in case he gives confessional statement to which he answered in the negative. Then PW 11 Oza questioned the accused whether any promise is given to him by any Police Officer or by any person, hence, he has shown his willingness to give the confessional statement, to which he answered in the negative. Then PW 11 Oza asked the accused whether he knows that PW 11 Oza is an independent Magistrate and no way concerned with the Police. PW 11 Oza also informed the accused that in case the appellant intends to put any question to him he is entitled to do so. The accused answered that he knew that Oza is a Magistrate and he may ask any questions to him. Then PW 11 Oza questioned the accused that in case he has any problem or doubt in his mind, then he may explain it to him or he may put any question to that effect to him, to which the accused answered that he had no problem and no doubt in his mind. Then PW 11 Oza questioned the accused that in case he has any problem or doubt in his mind, then he may explain it to him or he may put any question to that effect to him, to which the accused answered that he had no problem and no doubt in his mind. Then PW 11 Oza asked the accused whether he is aware that his confessional statement recorded will be used as evidence against him, he is also not bound to make the statement in law to which the accused informed that he is aware of these facts. Then PW 11 Oza informed the accused that 24 hours time will be given to him to rethink over whether he wants to give confession or not. After the question and answer session was over, the recorded questions and answers were read over to the accused by PW 11 Oza in Marathi language which the accused understood. On 07.06.2007, the appellant-accused was again produced before PW 11 Oza. Initially PW 11 Oza put some questions to the appellant which are reflected in the judicial confession (Exh 51). Then, he recorded the confession of the appellant. In this judicial confession (Exh 51), the appel1ant stated that he was the neighbour of Surekha and her family, hence, he knew Surekha and her family. The appellant stated that he met Surekha at about 08.30 p.m. to 09.00 p.m. At that time, he asked Surekha why she was crying. Thereupon, Surekha told him that she was beaten by her parents. The appellant then told her that she must be hungry so she should accompany him and he will give her vadapav. On saying this, Surekha accompanied the appellant. Then the appellant gave Surekha vadapav. After eating the same, the appellant took Surekha to an old building near the railway station. There he removed all the clothes of Surekha. He also removed his underwear. Then he did bad act with Surekha. Surekha was shouting, hence, he put a cloth ball into her mouth. He then put the clothes back on Surekha and then, he went home. This judicial confession receives sufficient corroboration from the other evidence on record, hence, we have no hesitation in relying on the same. 9. He also removed his underwear. Then he did bad act with Surekha. Surekha was shouting, hence, he put a cloth ball into her mouth. He then put the clothes back on Surekha and then, he went home. This judicial confession receives sufficient corroboration from the other evidence on record, hence, we have no hesitation in relying on the same. 9. Learned Advocate for the appellant pointed out that Surekha was missing from the night of 11.05.2007 and the dead body was found on 12.05.2007 at 08.30 a.m. The appel1ant has given entire details in his confession but he has referred the date as 12.05.2007 in his confession. She submitted that this aspect throws doubt on the entire judicial confession. On perusal of the entire judicial confession, we find that the appellant had given all the details. The learned Magistrate has also taken all the precautions which are necessary to be taken when a judicial confession is recorded. It appears that due to oversight, instead of 11.05.2007, the date has been stated as 12.05.2007. Obviously, the incident could not have taken place in the night of 12.05.2007 as the dead body of Surekha was found in the morning of 12.05.2007. This is clearly a mistake, however, on going through the entire judicial confession, we find that this aspect of date, in the facts and circumstances of the case, is not such as to discard the judicial confession made by the appellant. 10. On going through the record, we find that there is sufficient evidence which connects the appellant with the crime. Thus, we find no merit in the appeal, the same is dismissed. 11. Office to communicate this order to the concerned prison Authorities and to the appellant who is in jail. 12. At this stage, we must record our appreciation for Advocate Mrs. Nasreen S.K. Ayubi who is on the panel of Advocates of High Court Legal Services Committee and who was appointed to represent the appellant in this appeal. We found that she had meticulously prepared the matter and she has very ably argued the appeal. We quantify total legal fees to be paid to her in this appeal by the High Court Legal Services Committee at Rs. 2500. Ordered accordingly.